Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe rejects this view. She claims that, almost always, agents must act on their lesser-evil justifications. Our primary task (...) is to refute Frowe’s flagship argument. Secondarily, it is to sketch a positive case for nonconsequentialist orthodoxy. (shrink)

Much philosophical attention has been paid to the question of whether, and why, one may divert a runaway trolley away from where it will kill five people to where it will kill one. But little attention has been paid to whether the reasons that ground a permission to divert thereby ground a duty to divert. This paper defends the Requirement Thesis, which holds that one is, ordinarily, required to act on lesser-evil justifications for harming for the sake of (...) others. Cases in which we have lesser-evil justifications of harming for the sake of others are rescue cases. Ordinarily, an agent is under a duty to rescue unless doing so imposes too great a cost on her, or violates someone else's rights. When neither of these defeating conditions obtain, one is required to rescue even if this involves causing harm to innocent people. (shrink)

In the age of terrorism, the temptations of ruthlessness can be overwhelming. Yet a violent response to violence arguably makes us morally indistinguishable from our enemies. There is perhaps no greater political challenge today than trying to win the war against terror without losing our democratic souls. Michael Ignatieff confronts this challenge head-on, with the combination of hard-headed idealism, historical sensitivity and political judgement that has made him one of the most influential voices in international affairs today. Ignatieff argues that (...) we must not shrink from the use of violence. But its use - in a liberal democracy - must be measured. And we must not fool ourselves that whatever we do in the name of freedom and democracy is good. We may need to kill to fight the greater evil of terrorism, but we must never pretend that doing so is anything better than a lesser evil. In making this case, Ignatieff traces the modern history of terrorism and counter-terrorism, from the nihilists of Czarist Russia and the militias of Weimar Germany to the IRA and the unprecedented menace of Al Qaeda. (shrink)

Many believe that if the indiscriminate bombings of German cities at the beginning of World War II were necessary for preventing unlimited spread of Nazism, then the bombings were justified. For, the outcome, in which innocent Germans living in Nazi Germany are killed, was not as bad as the outcome in which the Nazis inflict ethnic cleansing and enslavement on a massive scale. Recently, however, Daniel Statman has advanced a powerful case against this type of justification. I aim in this (...) paper to develop an enriched version of consequentialism which rescues the "lesser evil elucidation" of the Exemption. (shrink)

Normative ethical theories owe us an account of how to evaluate decisions under risk and uncertainty. Deontologists seem at a disadvantage here: our best decision theories seem tailor-made for consequentialism. For example, decision theory enjoins us to always perform our best option; deontology is more permissive. In this paper, we discuss and defend the idea that, when some pro-tanto wrongful act is all-things considered permissible, because it is a ‘lesser evil’, it is often merely permissible, by the lights (...) of deontology. We show that this raises new problems for deontological decision theory, and we show that to resolve them, we need to take a more innovative approach to morally evaluating decision-making under risk and uncertainty. (shrink)

The rule I call ‘Civilian Immunity’ – the rule that prohibits targeting civilians in war – is the heart of the accepted jus in bello code. It prohibits targeting civilians in a wide variety of war circumstances. Seth Lazar's brilliant book, Sparing Civilians, attempts to defend Civilian Immunity. In this essay I show, first, that his ‘Risky-Killing based argument’ fails to provide civilians with the robust protection Sparing Civilians promises. I argue, secondly, that the moral framework that Sparing Civilians employs, (...) a moral framework that centralizes the Deontological Clause, leaves the immunity of civilians against Leaders unexplained. (shrink)

We are often faced with dilemmatic situations in which we must choose between alternative courses of action, both of which will have a bad outcome. It is commonly held that in such cases it is both uncontroversial and unproblematic that we have to choose the lesser evil. However, despite its frequent application in ethical decision-making, lesser evil reasoning is not well understood by most of its advocates and it thus occasions much misunderstanding and it presents a (...) number of pitfalls. In this paper I shall thus, first, analyse the concept of a lesser evil; second, offer a critical assessment of lesser evil reasoning; third, discuss the most common pitfalls writers tend to fall into; and finally, explore the application of lesser evil reasoning to choices under uncertainty. (shrink)

This article identifies an argument in Hobbes’s writings often overlooked but relevant to current philosophical debates. Political philosophers tend to categorize his thought as representing consent or rescue theories of political authority. Though these interpretations have textual support and are understandable, they leave out one of his most compelling arguments – what we call the lesser evil argument for political authority, expressed most explicitly in Chapter 20 of Leviathan. Hobbes frankly admits the state’s evils but appeals to the (...) significant disparity between those evils and the greater evils outside the state as a basis for political authority. More than a passing observation, aspects of the lesser evil argument appear in each of his three major political works. In addition to outlining this argument, the article examines its significance both for Hobbes scholarship and recent philosophical debates on political authority. (shrink)

Normative ethical theories owe us an account of how to evaluate decisions under risk and uncertainty. Deontologists seem at a disadvantage here: our best decision theories seem tailor-made for consequentialism. For example, decision theory enjoins us to always perform our best option; deontology is more permissive. In this paper, we discuss and defend the idea that, when some pro-tanto wrongful act is all-things considered permissible, because it is a ‘lesser evil’, it is often merely permissible, by the lights (...) of deontology. We show that this raises new problems for deontological decision theory, and we show that to resolve them, we need to take a more innovative approach to morally evaluating decision-making under risk and uncertainty. (shrink)

‘The Russian Revolution and the National Socialist ascendancy in Germany are the two most important sources of evidence of moral philosophy in our time, as the French Revolution was for Hegel and Marx, and later to Tocqueville and for Mill. Although both revolutions produced, both in intention and in effect, a triumph on a gigantic scale, there are often remarked differences between the evil effects planned and achieved.’ This is an observation made by Stuart Hampshire, a keen philosophical connoisseur (...) of the 20th century. (shrink)

The main aim of Jeff McMahan's manuscript on the morality of war is to answer the question: why and accordingly when is it justified or permissible to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. McMahan rejects all doctrines of collective responsibility and liability. His claim is that every individual is liable for what he has done and not for the actions of others - even if both are part of (...) the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Many of McMahan's main claims are appealing. Particularly, appealing is his rejection of the collectivist account of war. Indeed, it seems that the simple story according to which people are responsible solely for their actions - rather than (also) to the actions of others - should be held on until a different, more complex, account of collective responsibility is put forward and its plausibility is explained. Therefore, the article focuses on the general principles advocated by McMahan with regard to the resolution of all interpersonal conflicts: Whether these conflicts are small scale or large scale (that is, whether few or a many people are involved in the conflict), and within the latter category of conflicts involving many people, whether these conflicts qualify as war (according to some standard) or not. (shrink)

In recent years, philosopher Jeff McMahan has solidified an influential view that moral desert is irrelevant to the ethics of self-defense. This work aims to criticize this view by demonstrating that there are cases in which moral desert has a niche position in determining whether it may be permissible to kill a person in self- (or other-)defense. This is done by criticizing McMahan’s Responsibility Account of liability as being overly punitive against minimally responsible threateners (MRTs), and by demonstrating, through reference (...) to Saba Bazargan’s Hybrid Account of liability to defensive harm, that further justification than mere liability is necessary in the justification of killing these kinds of threateners. It is also argued that other kinds of justifications like lesser-evil justifications are not necessarily strong enough to justify killing MRTs, even on top of established liability. This paper puts forward the view that, where a strong enough moral difference between threatener and innocent victim cannot be established, a justification on the basis of the implications of prior moral acts might, on some occasions, give us reasons to kill or not kill MRTs in self-defense. (shrink)

In a morally perfect world we would not face many of the hard choices which confront us in the real world. If everyone were fully conscientious, moral dilemmas might still be posed by natural circumstances; but many of our most difficult and tragic choices would not arise. In particular, we would never need to decide whether we should ourselves do a lesser evil in order to prevent someone else from doing a greater one. Unfortunately we do not live (...) in such a perfect world. Through greed, malice, jealousy, false pride, or whatever, people are prepared to commit the most heinous crimes against innocent victims; and sometimes, it seems, they can be prevented only by means which no one would consider in the morally perfect world. One must choose among evils; doing a lesser evil oneself or allowing others to do an even greater evil. (shrink)

Jeff McMahan has recently proposed what he calls a “combined liability-lesser-evil justification.” Its core idea is that the fact that someone has no right against the infliction of a certain lesser harm makes it easier for the necessity or lesser evil justification to justify inflicting a greater harm on him. This idea has been taken up by authors like Saba Bazargan or Helen Frowe. I will argue that McMahan’s basic idea is implausible to begin with, (...) leads to counter-intuitive results, and seems to stem from a confusion between discounting the rights of wrongdoers and “subtracting” one right from the other. I then argue that Bazargan’s conclusion that minimally responsible threats can sometimes be killed as well as certain other conclusions that Bazargan regards as a particular advantage of his “hybrid account” are single-handedly generated by one element of that account, namely by the lesser-evil discounting view. Thus, the hybrid view is redundant. Moreover, both the hybrid view and the lesser evil discounting view of killing MRTs have strongly counter-intuitive implications. Finally, I show that Frowe’s application of the combined justification to non-responsible threats is entirely arbitrary and therefore useless. “Combined liability-lesser-evil justifications” should be rejected. (shrink)

In a morally perfect world we would not face many of the hard choices which confront us in the real world. If everyone were fully conscientious, moral dilemmas might still be posed by natural circumstances; but many of our most difficult and tragic choices would not arise. In particular, we would never need to decide whether we should ourselves do a lesser evil in order to prevent someone else from doing a greater one. Unfortunately we do not live (...) in such a perfect world. Through greed, malice, jealousy, false pride, or whatever, people are prepared to commit the most heinous crimes against innocent victims; and sometimes, it seems, they can be prevented only by means which no one would consider in the morally perfect world. One must choose among evils; doing a lesser evil oneself or allowing others to do an even greater evil. (shrink)

“The Trolley Problem” is the name Judith Jarvis Thomson has given to a difficult problem in moral philosophy and legal theory. The problem arises by considering a series of cases, all of which involve a choice of evils. Many, but not all of these cases, involve an out-of-control trolley about to run over a group of five people. In each case we are asked for our intuitive judgment as to whether it would be permissible to save the five people at (...) risk when doing so would require the death of, or the imposition of a high risk of death on, another human being. (shrink)

Winston Churchill said of democracy that it was ‘the worst form of government, except for all those other forms that have been tried from time to time.’ The same could be said of liberalism. While liberalism displays an unfailing optimism with regard to the capacity of human beings to make themselves ‘masters and possessors of nature’, it displays a profound pessimism when it comes to appreciating their moral capacity to build a decent world for themselves. As Michea shows, the roots (...) of this pessimism lie in the idea – an eminently modern one – that the desire to establish the reign of the Good lies at the origin of all the ills besetting the human race. Liberalism’s critique of the ‘tyranny of the Good’ naturally had its costs. It created a view of modern politics as a purely negative art – that of defining the least bad society possible. It is in this sense that liberalism has to be understood, and understands itself, as the ‘politics of lesser evil’. By unravelling the logic that lies at the heart of the liberal project, Michea is able to shed fresh light on one of the key ideas that have shaped the civilization of the West. (shrink)

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – (...) and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed. This article will appear in a symposium with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince. (shrink)

Many philosophers believe in lesser-evil justifications for doing harm: if the only way to stop a trolley from killing five is to divert it away onto one, then we may divert. But recently, Helen Frowe has argued that we do not only have the option to pursue the lesser evil: in most cases, we are so obligated. After critically assessing Frowe’s argument, I develop three mutually compatible accounts of lesser-evil options, which permit, but do (...) not obligate us to minimize harm. These are the Parity Account, the Prerogative Account, and the Permissible Moral Mistakes Account. Considerations of parity and prerogatives have arisen in this debate before, but in inchoate form. The Permissible Moral Mistakes Account introduces something new. (shrink)

The aim of this paper is to study and analyse the Charlie Hebdo attacks from a methodological and an ethical perspective, concentrating generally, though in some cases indirectly, on the consequences of our actions and the motives behind them. The analysis examines the issues of liberties, freedoms and responsibilities in general and further applies these values to the phenomenon of terrorism in contemporary society. The primary goal of this study is to use the Thomas Aquinas doctrine of double effect and (...) Michael Ignatieff’s lesser evil theory to appraise specific acts of terrorism. The article suggests that certain freedoms should be limited in democratic societies and thus ensure safety. (shrink)

Environmental Research Web, April 18, 2007.

Although torture is prohibited in international law, a consequentialist justification of it has occasionally been professed on the belief that torture is indispensable andeven morally obligatory as an information-gathering device in so-called 'ticking bomb' situations. The author adheres to the conviction that torture is an evil that could never justifiably be done. Objecting to the moral stand of consequentialism, he emphasizesthe distinctive terribleness of torture, drawing attention to the victim's infinite preciousness or 'sacredness', which even the concept of autonomy, (...) or the concepts of democracy and civilization never can reach. Of course, some might call this a question of the heart, and not of the head, and affirm — with Kant, for one — that cognitive content should be separated from resonant form if thought is to survive distortion. To this there is no argument apart from the vital testimony of goodness and pure love, where understanding involves head and heart inseparably combined. This is not just an appeal to the supererogatory, which belongs to a different perspective, as a feat of moral character. Saintly love not only affirms human dignity, it actively reveals and makes visible adignity that is inalienable from the victims humanity. Torture therefore never can fullfil the requirement that it be administered without degrading the intrinsic preciousness of each human being. (shrink)

1. Comparing the weight of different evils is highly problematic; neither a positivist, interpretive account nor an exclusively aspirational account is satisfactory. 2. Alexander is correct that choosing a lesser evil is sometimes a mandate, not a mere permission, but the point has wider application than he indicates. 3. Is a choice of lesser but not least evil justifiable? Alexander’s affirmative answer is only partially convincing. 4. Alexander endorses a striking claim: the very notion of a (...) reckless belief or reckless mistake (as to the factual grounds for a justification) is incoherent. This claim is insupportable, but the flaws in his argument demonstrate the complexity of the concept of reckless belief, especially in the context of justification defenses, where the probabilistic aspect of the distinction between permissible and impermissible risk-taking is especially salient. 5. Alexander aptly notes that the legislatively preclusion doctrine (which denies application of the lesser evils defense) creates a fundamental tension between legal actors’ power to articulate the content of the defense and the democratic pedigree of the criminal law. I conclude that genuinely democratic principles can be served by permitting juries considerable latitude to recognize a defense when the legislature has not yet had occasion to formulate an exception, or even, in some cases, by authorizing de facto civil disobedience. (shrink)

This paper explores the relationship between a person's claim right not to be harmed and the duties this claim confers on others. I argue that we should reject Jonathan Quong's evidence-based account of this relationship, which holds that an agent A's possession of a claim against B is partly determined by whether it would be reasonable for A to demand B's compliance with a correlative duty. When B's evidence is that demanding compliance would not be reasonable, A cannot have a (...) claim against B. I suggest that some of the putatively problematic cases that Quong identifies can be resolved by plausibly narrowing the scope of the right not to be harmed. I also argue that Quong's view leads to implausible conclusions, and that his account of what happens to A's claim in the face of lesser-evil justifications is inconsistent with his broader view. I then defend the view that agents are required, and not merely permitted, to act on lesser-evil justifications. I further argue that A may not defend herself against the infliction of harms that are justified on lesser-evil grounds. However, she may defend herself in cases where B is only evidentially, and not objectively, justified in harming her. (shrink)

This article explores one of the key themes of Hans J. Morgenthau's moral theory, the concept of the lesser evil. Morgenthau developed this concept by reference to classical political theory, especially the articulation of the lesser evil found in Aristotle and Epicurus. The article begins by differentiating Morgenthau's work from that of E. H. Carr, whom he regards as engaged in a Quixotic quest to provide Machiavellism with greater ethical purpose. The article also contrasts the ethics (...) of the lesser evil with Kantian ethics. Morgenthau places the lesser evil in the context of a modernity that has lost the capacity to think about the relationship between politics and morality and stresses the importance of coming to grips with the existential demands of love and power. Finally, the article argues that despite the ubiquity of evil, the existence of the lesser evil gives rise to the development of specifically political virtues such as prudence and moderation which raise the possibility of moral politics beyond mere expedience. (shrink)

Winston Churchill once asserted . In this conception, democracy is , something that is not good but is less bad than its alternatives. This study offers a rigorous test of this concept in the context of East Asia. Analysis of the East Asia Barometer surveys conducted in five new democracies in the region reveals that small minorities of these countries actually perceive the current democratic regime as a lesser evil. A large majority of these , moreover, refuse to (...) support democracy fully. On the basis of these findings, we argue that the Churchillian lesser-evil notion of democracy has limited utility as an alternative paradigm for the study of democratization among ordinary citizens. (shrink)

In “On the Abolition of All Political Parties,” Simone Weil poses the hypothetical predicament of a person who is intent on solving highly complex mathematical problems but is flogged every time the answer he arrives at is an even number. The person will oscillate between his genuine desire for the truth and the painful cries of his body. “[I]nevitably,” Weil writes, “he will make many mistakes—even if he happens to be very intelligent, very brave and deeply attached to the truth.” (...) She then asks: “What should he do?” Weil’s answer may surprise many readers, even though she claims it is “simple.” If possible, “he must run away” from those who wield the whip. It would have been best, she avers, had he avoided these associations in the first place. Elsewhere in her writings, Weil openly endorses the argument for the lesser evil, justifying active, potentially violent, resistance instead of a pacifist ethic of refusal. This essay analyses the tension between Weil’s ethic of “running away” and her acceptance of the lesser evil. (shrink)

Why is it that the laws of war, or international humanitarian law (IHL), allow no justification for breaking the law even if where such conduct would actually produce less humanitarian harm than following the law? In introducing the concept of a humanitarian necessity justification, and complementing existing work on humanitarian exceptions to the jus ad bellum, this paper suggests that it should. It first addresses the puzzle of IHL's existing absolutist stance with regard to compliance with IHL norms; to demonstrate (...) the implications of this absolutist stance, I use three historical case studies in which actors broke the law under a claim of necessity, or a mixed concern for self and others: The Early Warning Procedure employed by the IDF in the West Bank, the paradigmatic case of interrogational torture, and the atomic bombings of Hiroshima and Nagasaki. I then examine whether the domestic necessity defense in criminal law might be transposed onto the international level, ultimately finding that such transposition is impossible given the different assumptions that operate in domestic criminal law and IHL. In further searching for an account for IHL's absolutist stance and the possibility of mitigating that stance, the paper turns to first-order accounts - deontological, consequential, and institutional. I argue that none of these accounts offers a sufficiently convincing explanation for the exclusion of a humanitarian necessity paradigm, and instead, that room should be made for some humanitarian-driven exceptions. Ultimately, the paper offers a blueprint for a definition for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good. The central component of the definition is a requirement that the greater humanitarian good would be for the benefit of the enemy, rather than for oneself. Under such paradigm, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima (but not Nagasaki) might be justified, while the paradigmatic case of interrogational torture could not. (shrink)

It is widely thought that it can be permissible to persuade someone set on a greater evil to commit a lesser evil instead, though the question is not without controversy. I argue that a version of this kind of Principle of Counseling Lesser Evil can be derived from the Principle of Double Effect and some considerations about the way human choices work. As an application, I argue that giving bribes to officials who otherwise would not (...) do their job might be considered a special case of this counseling principle. (shrink)

How should a democratic state fight terrorism? This is the question discussed by Michael Ignatieff in his latest book. Ignatieff explores several possible positions as a response to this question. The review considers the analysis of these positions.

The release of over 6,000 genetically modified mosquitoes (GMM) into uninhabited Malaysian forests in 2010 was a frantic step on the part of the Malaysian government to combat the spread of dengue fever. The field trial was designed to control and reduce the dengue vector by producing offspring that die in the early developmental stage, thus decreasing the local Aedes aegypti population below the dengue transmission threshold. However, the GMM trials were discontinued in Malaysia despite being technologically feasible. The lack (...) of systematic studies in terms of cost-benefit analysis, questionable research efficacy and safety-related concerns might have contributed to the termination of the field trial. Hence, this research aims to evaluate the feasibility of GMM release in Malaysia by using a holistic approach based on an Islamic ethical-legal assessment under the maslahah-mafsadah (benefit-risk) concept. Three main strategies based on the maslahah-mafsadah concept approach have been applied: 1) an evidence-based approach, 2) an impact-based approach and, 3) a priority approach. The analysis concluded that GMM could be categorised as zanniyyah (probable). GMM is a promising alternative for dengue control, but many issues must be addressed before its widespread adoption. (shrink)

The practice of killing day-old chicks in the Dutch egg sector is a recurrent subject of societal debate. Preventing the killing of young animals and in ovo sex determination are the two main alternatives for this problem available. An online questionnaire was held to ask the opinion of the Dutch public about these alternatives. The results show that no alternative will be fully accepted, or accepted by more than half of Dutch society. However, the survey does provide an insight to (...) what people think is important for their choice: food safety and a good treatment of animals. Irrespective of the alternative chosen, these values should be safeguarded and communicated clearly. (shrink)

Residents with dementia in long-term care facilities (LTCFs) often receive antipsychotic (AP) medications without clear clinical indications. One non-clinical factor influencing the use of APs in LTCFs is low staff levels. Often, using APs is viewed and rationalised by healthcare professionals in LTCFs as a lesser evil option to manage low staff levels. This paper investigates the ethical plausibility of using APs as a lesser of two evils in resource-constrained LTCFs. I examine the practice vis-à-vis the three (...) frequently invoked conditions of lesser evil justifications as specified in the wider philosophical literature. These conditions include (1) the necessity condition, (2) the condition of sensitivity to both deontic (ie, constraint-based) and non-deontic (ie, outcome-based) considerations and (3) the commensurability condition. I argue that there are considerable difficulties in demonstrating that the practice in question satisfies the conditions of lesser evil justifications. In particular, there are major difficulties in satisfying the condition of sensitivity to deontic and outcome-based considerations, and the commensurability condition. I also argue that the current philosophical debate on lesser-evil justifications is not straightforwardly applicable to the practice of using APs for non-clinical purposes in LTCFs. I contend that caregivers are not so-called ‘generic’ agents, and the assumed rarity of lesser evil cases is questionable. I conclude that until further work is done to resolve these issues, the lesser evil reasoning cannot be, at least routinely, used to formulate robust moral justifications for the practice in question. (shrink)

According to the “Lesser of Two Evils Argument,” deployment of solar radiation management (SRM) geoengineering in a climate emergency would be morally justified because it likely would be the best option available. A prominent objection to this argument is that a climate emergency might constitute a genuine moral dilemma in which SRM would be impermissible even if it was the best option. However, while conceiving of a climate emergency as a moral dilemma accounts for some ethical concerns about SRM, (...) it requires the controversial claim that there are genuine moral dilemmas, and it potentially undermines moral action guidance in emergency scenarios. Instead, it is better to conceive of climate emergencies as situations calling for agent-regret. This alternative allows us coherently to hold that SRM may be morally problematic even if it ought to be deployed in some scenario. (shrink)

The defense of necessity, also known as the “choice of evils,” reflects popular moral intuitions and common sense: sometimes, breaking the rules is the right—indeed, the only—thing to do in order to avoid a greater evil. Citing a classic example, mountain climbers may break into a cabin to wait out a deadly snow storm and appropriate the owner’s provisions because their property violations are a lesser evil compared to the loss of life. At the same time, this (...) defense contradicts the fundamental principles of criminal responsibility in that it authorizes violation of rights of innocent bystanders. By allowing the mountain climbers to override the property rights of the cabin owner, the defense effectively forbids the cabin owner to use force in response—a different rule would perpetuate violence. This outcome is at odds with the basic criminal law doctrines. There is no general duty to rescue in Anglo-American law. Yet, by forbidding the cabin owner to use force, the defense of necessity essentially imposes on him the duty to forego his interests in favor of those of the mountain climbers. The paper explores the origins and boundaries of the defense of necessity. It argues that the existing public and private theories of necessity are unsatisfactory and concludes that a viable theory of necessity should be able to explain why it is sometimes permissible to override individual rights of citizens without their consent or fault. (shrink)